Scottish Court of Session Decisions

Lord Young—I consider this case is too clear for argument. That is my own opinion, and your Lordships so far agree with me that we have not called for any reply.

The facts of the case may be stated within a very narrow compass. The Caledonian Railway Company have a line of rails running on to the pier at Granton where they have also a crane, which is worked by steam, and managed by a crane-man, who is one of their servants. The use of the crane and the services of the crane-man are given upon hire to any one who properly requires them to load or unload any ship. Here a certain ship-loader, called a stevedore, was engaged under contract in loading a ship at the pier, and to enable him to execute his contract he hired from the Caledonian Railway Company the use of their crane, and the services of their crane-man. The stevedore had a man there, for whom he was responsible, to see that the barrels he had contracted to load into the ship were properly attached to the crane, or to the chain from the jib of the crane, and that the orders were given for the crane-man when and how to heave away. The name of the particular man with whom we have to deal was Morton. Having made fast the end of the chain to the barrel which was to be put into the ship, he called out—“Heave away.” The crane-man heaved away, but in swinging round the barrel to drop it into the ship it came against the pursuer of this action, who was standing on the pier in the way of the swinging barrel, and it knocked him over, to his great injury. He brings this action for the damage done to his person against the Caledonian Railway Company, and upon these averments which constitute the ground of action, viz., first, that the crane-man was so stationed that he could not see round the line of the swinging barrel when he caused it to be heaved; and second, that there was nobody employed by the railway company to see that the line of the swing was clear before the crane itself was set in motion. I think these are the two grounds of action. I think it is the fact on the evidence—for nothing to the contrary was said or suggested to us—that the crane was properly constructed in all respects, and that the crane-man was properly stationed, and that there was no fault in his being stationed where he could not see the whole line of the swing of the barrel. It is certainly according to the evidence that the railway company had nobody employed as a look-out to see that the coast was clear—that is to say, the line of the swing—before the crane itself was put in motion. But it appears quite conclusively that the stevedore's servant—the barrel-man—was necessarily in a position where he could see whether or not the coast was clear, and that to him was committed upon this, as on similar previous occasions, the duty of giving the order to heave away, and of course the counterpart of that, viz., the abstaining from giving any such order. I think that is the state of the evidence. It is merely superfluous to say that upon this occasion he did give the order to heave away when the coast was not clear, but when, on the contrary, the pursuer was standing in the line of the swing, he not having turned round to see whether it was clear or not before giving that order. He turned round after the order was i given, but not before. All the same he turned round and saw that the coast was not clear, and that the pursuer was in imminent danger. But then he saw that when it was too late, and so the accident occurred.

Now, upon that evidence the jury found a verdict against the railway company—that is to say, found that the accident happened owing to the fault of a person for whom they were responsible. Now, the only person for whom they were or could be responsible was the craneman. If he was to blame, he was of course responsible for his own fault, and if he was unable to meet the claim, then upon a rule of law with which we are familiar his employers would be responsible for him to the third party suffering. But his employer could not be responsible for anything of his except fault, for which indeed he would be responsible himself if he were able to meet his responsibility. Now, the question has been put—Was he guilty of any fault? The answer given by Mr Strachan was—Yes; he ought not to have set the crane in motion until he was certified that the coast was clear. But the reply to that on the other hand is, that he was certified that the coast was clear, that he received an order from the proper person to heave away—that is, if it be a sound proposition in good sense and in law, that the party properly intrusted with the duty of giving or abstaining from giving that order was bound to see that the coast was clear before he did give it. I myself think it clear that the person who is properly entrusted with the duty of giving or abstaining from giving that order has the consequent duty, indeed it is a part of the same duty, of seeing that the coast is clear before he does give it. It follows that when he does give the order, the crane-man receiving the order is certified by the person whose duty it is to certify him of that fact that the coast is actually clear.

But then it is said he was in fault. Well, he may be in fault. I think prima facie he was in fault; but then the railway company are not responsible for him, and the case that was cited to us at that part of the argument has really nothing whatever to do with the matter. The man was really in the service of the ship-loader, the stevedore who hired him, just as he hired the crane and the services of the crane-man to enable the contract to be executed. The ship-loader and not the railway company who supplied the crane and the services of the craneman is responsible for any misconduct on his part, and the meaning of the question put by my brother Lord Rutherfurd Clark to Mr Strachan, which he did not meet was really this—If you were proceeding against some one for his individual fault, who would it be you would proceed against? would it be the crane-man who obeyed the order given to heave away when the coast was not clear, he not being able to see whether it was clear or not? or would it be the barrel-man in the employment of the stevedore, whose duty it was to see whether the coast was clear before he gave the order; and who gave the order without seeing whether it was clear or not? It is really too plain for argument that it was the barrel-man who was in fault. I suppose Mr Strachan saw that very clearly, and he answered the question which was put to him, I suppose jocularly, “Most probably Mr Cunningham, the

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